Judgment :- 1. This appeal is against the dismissal of a suit for damages for breach of contract. 2. The plaintiff, a merchant at Quilon, Kerala offered 420 tins of coconut oil to the defendants, a trading firm at Kurnool, Andhra Pradesh, at Rs. 23 as. 6 per tin. The defendants accepted the offer by telegram dated February 18, 1952, reading: "Reed accepting one wagon if despatchable immediately Sending tt/20th wire" (Ext. P.3). The next day, February 19, the plaintiff wired to defendants: "Reed Confirmed 420 kerosene polish 321/2 gross twenty-three annas six despatching on wagon supply Remit thousand telegraphically today Reply wire Please note tins ready Can book only on wagon supply." (Ext. P. 4) The same day the defendants wired in reply: 'Reed Sending one thousand tomorrow telegraphically through Central Bank Despatch best packing imdtly" (Ext. P. 5) On February 21, an advance of Rs. 1000/- was admittedly received by the plaintiff. On February 22, he registered a demand for one covered wagon at the Quilon Railway Station. After that there appears to have been no correspondence between the parties till March 10, when the defendants wired to the plaintiff: "Twenty days passed Cocoanut oil not yet despatched at bar Cancelled Send thousand rupees urgent" (Ext. P. 9) It was received at Quilon at 19 hours 2 minutes; and at 20 hours 15 minutes the same day the plaintiff wired: "Wagon not yet shipped (supplied?) Despatching on supply" (Ext. D. 5) Three days after, on March 14, the plaintiff sent another telegram to the defendants: "Reed Confirmed contract cannot be cancelled Delay not our part Wagon supply not in our control Yourself liable for breach of contract Selling at your risk today" (Ext. D. 3) This message reached Kurnool at 12 hours 22 minutes; and at 14 hours 20 minutes the same day the defendants wired back: "Reed If not accepting cancellation despatch goods Do not sell without our orders from (inform?) wagon registration date priority number" (Ext. P.17) The next day, on March 15, the plaintiff telegraphed: "Reed Your wire belated Already covered as per thirteenth Notice follows" (Ext. P.18). The above are the correspondence relating to the formation and the breach of the contract between the parties. 3. That a contract had been struck properly is not in dispute. P.17) The next day, on March 15, the plaintiff telegraphed: "Reed Your wire belated Already covered as per thirteenth Notice follows" (Ext. P.18). The above are the correspondence relating to the formation and the breach of the contract between the parties. 3. That a contract had been struck properly is not in dispute. The only aspect stressed in that regard is that the defendants were, from the very start, keen on immediate delivery of the goods; but the plaintiff was cool at this end, as he registered for a wagon only a day after he received the advance even though the contract was made - by unequivocal acceptance of the offer - three days before. Nothing much turns on that indifference on the part of the plaintiff. 4. On March 10, 1952, the defendants have wired Ext. P. 9 message to the plaintiff that they have cancelled the contract. The plaintiff is positive that the date for delivery, which was dependent on the contingency of the plaintiff's getting a wagon allotted by the Railways, had not then arrived. It then follows that the defendants' message of cancellation comes within the purview of S.60 of the Indian Sale of Goods Act, 1930, which reads: "Where either party to a contract of sale repudiates the contract before the date of delivery the other party may either treat the contract as subsisting and wait till the date of delivery or he may treat the contract as rescinded and sue for damages for the breach." By the express words of the law, the defendants' cancellation of contract was not binding on the plaintiff. The latter could either accept it and treat the contract as broken or refuse to accept it and treat the contract as continuing. There cannot be a cancellation of a contract by one party without the concurrence of the other. As for formation so for cancellation also both parties have to join. The unilateral act of one party may amount to a breach of the contract entitling the other immediately to claim damages for such breach. There cannot be a cancellation of a contract by one party without the concurrence of the other. As for formation so for cancellation also both parties have to join. The unilateral act of one party may amount to a breach of the contract entitling the other immediately to claim damages for such breach. In White and Carter (Councils) Ltd. v. Mc Gregor (1962-2 Weekly Law Reports 17), Lord Reid observed it settled law throughout the United Kingdom: "If one party to a contract repudiates it in the sense of making it clear to the other party that he refuses or will refuse to carry out his part of the contract, the other party, the innocent party, has an option. He may accept that repudiation and sue for damages for breach of contract, whether or not the time for performance has come; or he may if he chooses disregard or refuse to accept it and then the contract remains in full effect." Chitty on Contracts explains the position thus: "If, before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it.... this of itself entitles the other party to take one of two courses. He may treat the renunciation as a breach of contract and sue for damages forthwith, or he may wait till the time for performance arrives and then sue The second alternative is illustrated by Avery v. Bowden. In this case there was a contract by charter party that a ship should sail to Odessa and there load a cargo. The ship arrived at Odessa and the captain demanded a cargo, but the charterer's agent refused to supply one. The time within which the cargo was to be furnished had not expired when this refusal took place and the captain might have treated this as an anticipatory breach by renunciation and sued accordingly. He did not do so, but continued to demand a cargo, and before the running days had expired, war broke out between England and Russia and performance became: legally impossible. He did not do so, but continued to demand a cargo, and before the running days had expired, war broke out between England and Russia and performance became: legally impossible. When the charterer was sued for breach of the charterparty, the defence was sustained that there had been no failure of performance before war broke out and, as the captain of the ship had not elected to treat the refusal to load a cargo as a renunciation, the shipowner was entitled to take advantage of the discharge of the contract by impossibility. In other words, if the second alternative is chosen the contract subsists at the risk of both parties, and the anticipatory breach is ineffective. This is well expressed by Cotton, L.J., in Johnstone v. Milling where he says: "The promisee, if hi pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all the obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, butt also to take advantage of any supervening circumstance which would justify him in declining to complete it." (22nd edn. Para.1244 and 1246) What the plaintiff did was, in his telegram Ext. D5, to intimate the defendants that he was treating the contract as continuing and despatching the goods on getting a wagon. Counsel contended that Ext. D5 was not a reply to Ext. P 9 but was independent of it and that the reply to Ext. P9 was Ext. D3 only. The entire correspondence in evidence shows that the parties at both ends had been very prompt in their correspondence by telegrams. Ext. D3, dated March 14 was not the first reply to Ext. P. 9 received on March 10. Ext. D5 was flashed within an hour and a quarter of its receipt. The sequence of the telegrams Exts. P9 and D5 - particularly in the absence of correspondence between the parties in the period February 22 to March 10 - make clear beyond any doubt that Ext. D5 was the prompt reply given by the plaintiff to Ext. P9. Ext. D5 was flashed within an hour and a quarter of its receipt. The sequence of the telegrams Exts. P9 and D5 - particularly in the absence of correspondence between the parties in the period February 22 to March 10 - make clear beyond any doubt that Ext. D5 was the prompt reply given by the plaintiff to Ext. P9. The exercise therein of the option under S.60 of the Sale of Goods Act binds the plaintiff and therefore the contract has to be found to have subsisted alive and effective even after March 10, 1952, for the benefit of both the parties. It is pertinent to note here the pleading in the plaint in regard to the import of Ext. D3. Para.6 of the plaint reads: "While the supply (of the wagon) was awaited the defendant unceremoniously cancelled the order on 10-3-1952. The mistake in so cancelling was pointed out to the defendant that in case of failure to take delivery here on full payment on 13-3-1952 the contract would be covered and the defendant held liable for any loss. As the defendant did not come that day as intimated the contract was covered on 13-3-1952 and a loss of Rs. 2,940 at Rs. 7 per tin was incurred." It is conceded by counsel for the plaintiff that the reply to the defendants' communication of 10-3-1952 referred to in the above pleadings is Ext. D3. It is then clear that the plaintiff did not accept the repudiation of the contract by the defendants, but wanted them as per Ext. D3 to perform their part of the contract. 5. The next event was, of course, the plaintiff's telegram, Ext. D3, on March 14. Counsel tried to make out that it was wired on March 13. Ext. P.25, the book wherein the plaintiff used to copy all his telegrams to various dealers, contains on its page 423 an entry, marked Ext. P.12, which reads exactly as Ext. D3 and it is dated "13-3-1952". But Ext. D3 is the original of the message given to the defendants by the Telegraph Office, Kurnool. It reads that the message was "handed in at the Office of Origin, Quilon" at 12th hour on March 14. The message might have been prepared by the plaintiff on March 13, but obviously it was despatched only on March 14. But Ext. D3 is the original of the message given to the defendants by the Telegraph Office, Kurnool. It reads that the message was "handed in at the Office of Origin, Quilon" at 12th hour on March 14. The message might have been prepared by the plaintiff on March 13, but obviously it was despatched only on March 14. In that telegram the plaintiff has asserted three things: (1) that the contract being confirmed cannot be cancelled, (2) that the defendant would be liable for breach of contract and (3) that he was selling the goods at the defendants' risk. The first is a reiteration of his earlier message in Ext. D5 that he is not accepting the defendants' repudiation but is treating the contract as uncancelled or continuing; the second is a warning that the time for performance has not arrived and that the defendants, if they do not accept delivery of the goods to be made in due time, would be liable for breach of the contract; and the third is an assertion which is inconsistent with the first, unwarranted in law, and, as evidence of the plaintiff himself shows, untrue in fact in every respect. When he exercised the option under S.60 of the Sale of Goods Act and communicated the same to the defendants by telegram, Ext. D5, which reached the defendants on March 11, the matter has become concluded between the parties that the defendants' repudiation of the contract was inoperative and that the contract was continuing in force between them. The statement in Ext. D3 that the plaintiff was not at fault as he had not received yet a wagon from the Railways to despatch the goods was an intimation that the time for performance of the contract was still awaited. In the commentary on the Indian Sale of Goods Act by Pollock and Mulla (2nd edn., page 262) the learned authors quote Roper v. Johnson L.R. 8 C.P. 167: "The election to take advantage of the repudiation of the contract goes only to the question of breach and not to the question of damages" and observe, "The measure of damages, however, is not affected by the date of the defaulting party's repudiation. It is still fixed by the difference between the contract price of the goods and the market price on the day when they ought to have been accepted or delivered, as the case may be; and this is so, even if, by reason of the plaintiff electing to treat the defendant's refusal as an immediate breach, the cause of action is complete," and earlier at page 240 of the same commentary the learned authors have observed: "The date at which the market price is to be ascertained is the day on which the contract ought to have been performed by delivery and acceptance as fixed by the contract The time again may be uncertain, yet fixed by reference to the happening of an event, such as the arrival of a ship. In such a case the time is still fixed by the contract and the time at which the contract ought to have been performed is on the happening of that event." So the liability for breach of contract indicated in the second statement in the message Ext. D3 must be a reference to the consequences that may befall in due time if the defendants persist on repudiation of the contract that has been cautioned against in the first statement thereof and also in the prior message, Ext. D5. In the wake of those statements, the plaintiff had no justification for his third statement in Ext. D3 that he was selling the goods at the defendants' risk. His plea in the plaint that, since the defendants did not respond to his call to carry out the contract conveyed by Ext. D3, he sold the goods on the 13th March is obviously unsustainable. If Ext. D3 implied a message to the defendants to fulfil the contract - it must be the implication in the first two clauses in Ext. D3 as noted above - the defendants have promptly wired in answer thereto their readiness to accept the goods and the request to the plaintiff to despatch them. (vide Ext. P17). Under the contract the advance stipulated had been paid and it is conceded that the balance was to be paid only against delivery of goods f. o. r. Quilon. The plaintiff was to put the goods on the rails and he had not done so when he wired Ext. D3. (vide Ext. P17). Under the contract the advance stipulated had been paid and it is conceded that the balance was to be paid only against delivery of goods f. o. r. Quilon. The plaintiff was to put the goods on the rails and he had not done so when he wired Ext. D3. So then the performance of the contract was awaited only on the plaintiff's side and there was nothing to be performed by the defendants. Their part of the contract would arise for performance only after the plaintiff had despatched the goods. When the plaintiff intimated his refusal to accept the repudiation, the defendants abided by it and requested the plaintiff to go on with the performance of the contract and to despatch the goods to them. When, thereafter, the plaintiff did not care to deliver the goods, the breach of the contract was really on his part only. 6. It may be noted here that the re-sale alleged by the plaintiff is by his offer to sell the goods to a third party, Medam Nandyal, by the telegram Ext. P15 dated March 13,1952, and its acceptance by the third party by the telegram Ext. P16 the same day. It is argued on the basis of those telegrams that there was an effective re-sale of the goods on March 13 to the third party at Nandyal - a sale that never fructified even according to the plaintiff himself. Assuming that the plaintiff did sell the goods on March 13, to 'Medam Nandyal' that would be of no relevance here, except perhaps to make out a breach of the instant contract on the part of the plaintiff. He had called the defendants to observe the contract by the telegram, Ext, D3, of March 14. He could not then have resold the goods on March 13 with impunity. Even if he had sent that message on March 13, and thereby called the defendants to perform the contract on that day, as is pleaded by him in par. 6 of the plaint, - one is at a loss to know what was there for the defendants to perform then - the plaintiff could have resorted to a re-sale of the goods only on the 14th. 7. The plaintiff's claim has to be and is found a fancied one in all its aspects. The appeal has to fail. 6 of the plaint, - one is at a loss to know what was there for the defendants to perform then - the plaintiff could have resorted to a re-sale of the goods only on the 14th. 7. The plaintiff's claim has to be and is found a fancied one in all its aspects. The appeal has to fail. There is a cross-objection by the defendants for the costs disallowed by the Court below. While dismissing the suit the Additional District Judge has directed both parties to suffer their respective costs. No reason is given for deviating from the normal rule of "costs to follow the event" enunciated in S.35, C.P.C. The plaintiff's suit has little justification in fact; and no reason is made out why the defendants should be deprived of their right to costs of a successful litigation on their part. The cross-objection has therefore to be allowed. In the result, the appeal is dismissed with costs; and the cross-objection is allowed with costs, to include a direction for the defendants' costs in the Court below to be paid by the plaintiff. Dismissed.